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06/15/89 the People of the State of v. Rene R. Pantoja

June 15, 1989





540 N.E.2d 892, 184 Ill. App. 3d 671, 133 Ill. Dec. 26 1989.IL.894

Appeal from the Circuit Court of Kane County; the Hon. Pamela K. Jensen, Judge, presiding.


JUSTICE REINHARD delivered the opinion of the court. McLAREN and NASH, JJ., concur.


Defendant, Rene R. Pantoja, was charged in the circuit court of Kane County with unlawful use of a weapon (Ill. Rev. Stat. 1987, ch. 38, par. 24-1(a)(4)), no firearm owner's identification card (Ill. Rev. Stat. 1987, ch. 38, par. 83-2(a)), unlawful possession of fireworks (Ill. Rev. Xtat. 1987, ch. 127 1/2, par. 128), and defacing a firearm (Ill. Rev. Stat. 1987, ch. 38, par. 24-5(a)). Following the denial of his motion to suppress evidence, defendant stipulated to the evidence presented at the suppression hearing and other facts presented to the court and was found guilty of unlawful use of a weapon and unlawful possession of fireworks. He was sentenced to a 12-month period of probation and a $150 fine on the former conviction and a concurrent 12-month period of probation and a $100 fine on the latter conviction. The remaining two charges were stricken with leave to reinstate.

On appeal, defendant contends that the circuit court erred in denying his motion to suppress, as both the stop and subsequent search of his person and vehicle were unreasonable.

Following his arrest, defendant filed a motion to suppress evidence asserting that his warrantless detention and arrest and the subsequent seizure of evidence were without probable cause and illegal. At the suppression hearing, defendant testified that, as he sat parked behind the wheel of his automobile on July 9, 1987, in Elgin, he was arrested without a warrant.

The only witness for the State, Elgin police detective Henry Smith, who was in charge of gang crimes and investigations, testified that while driving in his vehicle he heard a radio dispatch to other officers that defendant had been seen in Elgin with a handgun. A description of defendant's car was also given. The information over the police radio dispatch had been provided to the police by an anonymous citizen complainant who was unwilling to give a name. All that was stated to the police was that defendant had a handgun and had left a location in a certain described vehicle. Smith knew defendant, his address, what vehicle he drove, and that defendant was considered to be a leader of a gang in Elgin. He also was aware that on last New Year's Eve defendant and other persons were in the area where gunshots were fired and a gun was found. He proceeded to defendant's residence and, upon finding that defendant's vehicle was not there, proceeded down the street, where he located the parked vehicle. Defendant was seated behind the steering wheel, and a passenger was seated in the vehicle. A third person was standing beside the vehicle.

Smith had both persons exit the vehicle. There was nothing unusual about these persons' activities. After backup officers arrived, he searched defendant and the other two persons. No weapon was found. Smith then searched the area of the vehicle where defendant was seated and found fireworks on the front floor. Defendant was placed under arrest for unlawful possession of fireworks. Before the vehicle was towed to the police station, an inventory search was conducted. While other officers conducted the inventory of the vehicle, Smith questioned defendant at the police station about the handgun and was told by defendant that he did have a gun in his possession, but had given it to another person before Smith arrived. When Smith later learned that a handgun was found near the glove compartment of the vehicle during the inventory search at the scene, he confronted defendant with that fact, and defendant admitted he had the gun in the dashboard area of the vehicle.

In denying the motion to suppress, the trial Judge found the initial stop reasonable based on the anonymous citizen complaint that defendant had just been seen with a handgun in his possession, on Detective Smith's previous knowledge of defendant and the incident of gunshots being fired and a gun being found on last New Year's Eve when defendant was present, and on Smith's corroborating observation shortly after the dispatch of defendant sitting in the vehicle described in the dispatch. The trial court further found the limited search yielding the fireworks to be justified and the further search of the vehicle at the scene to be legal.

We initially address whether there was a valid stop of defendant. Defendant contends that the anonymous informant's tip which led to the stop was lacking in detail and reliability. Furthermore, he contends that Smith's prior knowledge about defendant and the sole fact that defendant was in the described car were insufficient corroborating facts to overcome the lack of reliability of the anonymous tip. Defendant principally relies on this court's decision in People v. Moraca (1984), 124 Ill. App. 3d 561, 464 N.E.2d 312.

The State contends that this is a valid stop under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. While conceding that the information from the unknown informant "may not be enough facts on which to base a Terry stop," the State argues that, because Detective Smith knew of defendant, knew where he lived, knew what vehicle he drove, knew he was a gang member, and knew of the New Year's Eve incident involving a gun, there were sufficient corroborating facts to justify the stop in this case.

At the outset, we note that while defendant was already stopped in his vehicle before Detective Smith arrived, the act by Detective Smith in ordering defendant from his vehicle is clearly a seizure upon which the "stop and frisk" analysis under Terry is formulated. (Terry, 392 U.S. at 16-18, 20 L. Ed. 2d at 903-04, 88 S. Ct. at 1877-78.) In Terry, the Supreme Court recognized a limited exception to the probable cause requirement which allows a police officer, under appropriate circumstances and in an appropriate manner, to briefly detain a person for investigatory purposes and, if, necessary for safety, to conduct a limited protective search of that person for concealed weapons. Specific and articulable facts, and not a mere hunch, must exist to justify a Terry stop and frisk for a weapon. (Terry 392 U.S. at 27, 20 L. Ed. 2d at ...

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